Montana's big win

Democracy triumphs in court—for now

Toward the end of the robber-baron era of the 19th century, the U.S. Senate took the extraordinary action of denying a seat to mining titan W. A. Clark. The senators had determined that Clark bribed Montana's state legislators to get the Senate appointment.

Outrage over the incident contributed to passage of the 17th Amendment, which took the election of senators out of state legislatures and put it in the hands of voters. Nonetheless, corruption was routine for decades in Montana, where the state government operated like a subsidiary of powerful mining companies. Finally, Montanans fought back and passed the Corrupt Practices Act, a citizens' initiative, in 1912. The law barred direct corporate spending intended to influence election outcomes and helped restore integrity to Montana politics for 99 years. The Corrupt Practices Act continues to enjoy wide support; Republican Bob Brown, for example, who served in Montana's House of Representatives and as secretary of State, testified that it was necessary to preserve political integrity.

Last year, however, a corporate advocacy group called Western Tradition Partnership convinced a district judge that a 2010 U.S. Supreme Court decision (Citizens United v. Federal Election Commission) rendered Montana's law unconstitutional when it granted corporations the power to spend unlimited funds on electioneering. In a surprising decision Dec. 30, the Montana Supreme Court overturned that lower court by a 5-2 majority and issued an extraordinarily informative ruling. It detailed Montana's history of rampant corruption, providing a factual record of corruption that was lacking in the Citizens United case.

The Montana Court said the Citizens United decision did not negate the Corrupt Practices Act, in part because it considered neither non-partisan nor judicial elections, as Montana's law does. The justices deemed this a key difference because "the free speech rights of the corporations are no more important than the due process rights of litigants in Montana courts to a fair and independent judiciary, and both are constitutionally protected. The Bill of Rights does not assign priorities as among the rights it guarantees."

Montana Justice James Nelson attacked the U.S. Supreme Court's decision head-on: "Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces [us] to share fundamental, natural rights with soulless creatures of government." Despite his scathing critique, Nelson was one of the Montana court's two dissenters, believing the Supreme Court's ruling created binding precedent.

Even under Montana law, corporations still may engage in electoral advocacy. They simply must abide by rules that help ensure that money comes from voluntary contributions of executives, employees or shareholders, rather than taking shareholders' money to advance viewpoints without their prior knowledge or consent. As the Montana Supreme Court noted, the task is minimal, whereas the Citizens United ruling viewed the federal filing requirements as burdensome.

Money drowning out the voices of citizens can happen in almost any election, thanks to the Citizens United decree that "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption." That language led to the new "super PACs," which can accept unlimited donations to attack or support candidates.

Newt Gingrich, who previously hailed Citizens United as a "great victory for free speech," might be having second thoughts. He was furious when a super PAC run by supporters of Mitt Romney derailed his presidential campaign in Iowa with $4 million-worth of attack ads nationally. Gingrich led the polls in early December but finished fourth in Iowa's Republican caucus after the ad barrage. Super PACs are only required to file reports quarterly, so by the time voters know who is funding these efforts, the Republican nominee may already be apparent.

Elections for Montana state offices will be among the few in 2012 in which super PACs are banished and donations from average citizens matter, and who knows: Montana's bold stand might well inspire others.

Yet even this small victory could be undone if the case—appealed by the plaintiff Jan. 5—gets undone by the U.S. Supreme Court. Meanwhile, Montana's victory fuels the growing movement to overrule the U.S. Supreme Court's creation of "corporate personhood" with a constitutional amendment.

That would clarify what is obvious to most of us if not to five men sitting on the Supreme Court: The Bill of Rights was enacted to protect the rights of actual human beings.

Jeff Milchen is a contributor to Writers on the Range, a service of High Country News (hcn.org). He is the co-founder of the American Independent Business Alliance, a network of 80 community organizations supporting local businesses in competition with major corporations. He lives in Bozeman.